Anti-Marketing Laws and the Commercial Speech Doctrine

By Eric Goldman

Prompted by the Supreme Court’s denial of cert in the White Buffalo case, Chris Hoofnagle of EPIC posted a nice rundown of some recent cases where anti-marketing laws survived a First Amendment challenge. He calls the 1999 US West case (which struck down an FCC rule limiting resale of customer records) the “high water mark” of the argument that First Amendment rights trump “privacy” laws. [Chris' characterization of the laws as "privacy" laws confused me; all of the laws were intended to restrict marketing in some fashion.]

He then makes his case by discussing a number of opinions from the last 5 years where anti-marketing laws survived a First Amendment challenge. Chris concludes: “In light of the number of cases where privacy law has trumped commercial free speech, shouldn’t we consider U.S. West to be an anomaly?”

Descriptively, I think Chris’ characterization is generally correct. First Amendment challenges to anti-marketing laws have met with scarce success recently.

Normatively, I’m not sure we should be celebrating this corner of First Amendment jurisprudence. The commercial speech doctrine is incoherent, and I don’t envy lower court judges having to apply the commercial speech doctrines to anti-marketing laws. I wouldn’t know what to do either.

Personally, I rarely get excited by First Amendment defenses against anti-marketing laws. I would much prefer to focus on first principles–what rules make for good social policy, and why? Unfortunately, this type of policy-making is rarely possible, leaving First Amendment challenges as last-ditch (and often low-likelihood-of-success) efforts to correct shaky policy-making.

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